Once we indulge the taste to take away simply because others have, there is no end but desolation.
The death of Walter Berns (1919-2015) has deprived this country of a patriot both remarkably devoted and remarkably thoughtful. He was a thinker resolutely loyal to, yet resolutely reflective about, the United States. These two qualities were also characteristic of Walter as a person and as a friend.
Among the numerous subjects that this political theorist addressed, I am selecting for special (though far from exhaustive) attention these: constitutionalism, patriotism, punishment, public morality, civic education, and religion. How, and to what extent, has he illuminated these subjects? How consistent are his viewpoints regarding them, advanced in various contexts over many years?
It is fair to say, I think, that constitutionalism and patriotism are the predominant themes in Berns’s thought—at least in his later years. His central idea on constitutionalism is that it is largely a matter of devotion to “forms” or formalities. As he wrote in Taking the Constitution Seriously (1987): “Constitutional government is above all government by due or formal processes, processes governed by rules.” The message I get is that the requirement for government, and the majorities it represents, to act by and under general rules is perhaps our primary protection of individual liberty. This is the venerable idea of the rule of law.
To Berns’s point about liberty I would add that the rule of law, by its restriction of arbitrariness or containment of subjectivity, can be regarded as a contributor to rationality in public affairs. But one may consider (as Berns’s argument seemingly doesn’t) that there is such a thing as too much of it. The too-much is what we periodically refer to as “legalism” or “formalism”—an excessively rule-governed way of thinking and acting that limits the employment of reason. The relation between the rule of law and the rule of reason is an interestingly complex question for legal philosophy. Berns didn’t have to tackle it, but I wish he had.
On the issue of patriotism, Berns combines enthusiastic endorsement and nuanced analysis. His 2001 work Making Patriots is devoted to the country’s critical need for public-spirited citizens, and to the kind of education that promotes it. Bern is no apologist for “my country right or wrong”-style nationalism; American patriotism, he argues, is mostly something different from that. Our authentic patriotism is a love and appreciation for a country that truly deserves it. We deserve it because, unlike many other nations, we have afforded men and women of “all sorts and conditions” the opportunity to pursue happiness as they conceive happiness. Abraham Lincoln is quoted to this effect: While our devotion to America involves, of course, the love of what is our own, more so it is a commitment to universal principles as affirmed by the Declaration of Independence.
Simple love of our own is a natural impulse. On the other hand, the aspect of patriotism transcending it is not, evidently, a spontaneous affection. In Berns’s view, that has to be learned; it has to be promoted and directed by a civic education. Self-interest is what comes naturally; out of such material, citizens have to be “made” by a process including inspiration and inculcation. (The term “indoctrination” comes to mind, though Berns doesn’t use it.)
Berns acknowledges the special difficulty of devising a public-spirited curriculum among a people, like us, for whom “rights are primary and duties are secondary and derivative.” That looks like a problem, alright. Yet, paradoxically perhaps, we are one of the most patriotic of peoples on Earth. Berns speculates on the extent to which this phenomenon is attributable to, and dependent upon, our wars and remembrance of wars. (We have our Memorial Day, the Lincoln Memorial, the World War memorials, others.) The implication of all this, for me and maybe for Berns, is that patriotism, in its American form, is an amalgam of the rational and the non-rational. As Lincoln put it, we are bound together by “mystic chords of memory” stretching back to battles and battlefields.
From a realist perspective, how influential can mystic memories be among a population of commercial individualists who look to the future for gain and “progress”? On this sort of question Berns appears more optimistic than pessimistic—as long as we maintain the right education. Regarding formal education, he counsels against an emphasis on America’s shortcomings and in favor of a (presumably reverential) focus on biographies of our prominent statesmen. It is worth noting that reading and reflection on such biographies is (or ought to be) a contribution to liberal education. Here, a patriotic and a liberal education are in gratifying harmony.
Yet a disparity surely exists between patriotic sentiment and liberal education. The latter, at its best, involves disinterested inquiry and contemplation of basic realities. Patriotic sentiment is not contemplative; indeed it is often associated with righteous indignation. The zealous patriot is likely to be angry at adversaries—real, potential, or imaginary.
Now anger, political and personal, was a subject of considerable interest in the reflections of Walter Berns. He had interestingly varied things to say about it. Regarding the hostility toward America expressed by flag-burning protesters, Berns said: “anger provokes anger, as it did in this instance, not agreement or accommodation.” To put it most succinctly, rage is incompatible with consensus. Yet, in the context of a justification for punishment (including the death penalty), he says this: “Justice is demanded by angry, morally indignant men, men who are angry when someone else is robbed, raped or murdered. . . . This anger is an expression of their caring.” Criminal punishment functions as public recognition, and ratification, of that anger, thereby bolstering civic morality.
Is Berns criticizeable for self-contradiction here? Not necessarily. What thoughtful person, in a long career of commentary on various controversies, can meet a stringent test for consistency? Arguably, anger promotes only anger when it publicly desecrates the cherished national symbol, but not when it is expressed in the form of lawful penalty. And lawful penalty may be considered as a way of channeling, not just ratifying, public outrage.
There is so much more to be said about this important passion; I’ll settle here for two observations of utmost brevity. The New Testament is against anger; Aristotle endorses it as a natural human endowment. Finally, anger seems endemic to political life as such, wherein passionately conflicting interests wear the mantle of moral rightness. (That’s wrong! That’s unjust!)
It was in view of such reality (not unawareness) that Berns stresses the importance of civility. While in the politics of democracy there must be a vital role for freedom of expression, its good health mandates civility of expression. While Berns recognizes that public debate on controversial issues is going to be passionate, he wants the passions to be confined (at least somewhat) by a basic mutual respect. That is, the contestants have to remember that they belong to the same national community. Since that civilizing attitude is undermined by such aggressive modes of self-expression as flag-burning, they ought not to be viewed as legitimate free speech. The law should “teach civility,” and it undertakes to do so by penalizing grossly anti-social modes of “speech” in public discourse.
The idea that the law functions as an educator can be found, periodically, in Berns’s writings. Anti-obscenity (or anti-pornography) statutes may be understood in that way; properly constructed, they serve to remind us that there are standards of decency. What standards exactly, and why support them by law? Berns had a provocative way of responding to such questions.
Why, he asks, do we prohibit acts of sexual intercourse in public places? After all, aren’t we a free society and isn’t sex desirable? Berns argues that a loving or affectionate sexuality, a human sexuality, needs privacy; sex that knows no shame is animalistic. The law preventing intercourse in streets or parks “has the function—and some would say that law generally has the duty—of pointing us in the direction of the human. Human sexuality needs the assistance of the laws.” And that is the ultimate rationale for “obscenity” laws restricting blatant representations of erotic activity.
This counter-argument is likely to be made: Laws against “public indecency” are not about supporting morality; they are simply about protecting ordinary citizens from the shock of having to witness such things. Berns might reply that the law doesn’t protect us from all shocks; people find all sorts of things shocking. Is there not something special about this kind?
More broadly, these libertarian counter-arguments can be expected: The state (hence, its law) has no legitimate interest in the character of the erotic life; that is a private matter. Or, if there is a communal interest, it is adequately provided for by education and exhortation. Anyway, censorship is worse than whatever evils are sought to be prevented by it. These contentions are by no means unanswerable, and one can draw from Berns’s work implicit answers. I wish he had addressed these sorts of claims in a more systematic way, since their implications extend well beyond the censorship issue.
One libertarian idea that Berns did address, and forcefully, is the denial that a defensible distinction can be made between serious erotic art and vulgar trash. He deplored the aesthetic—and moral—relativism exemplified by the rather pervasive notion that “one man’s vulgarity is another’s lyric.” On the relativistic premise, it would have to follow that there is no basis for identification and appreciation of great works of art.
Yet Berns fully acknowledges the difficulties involved in making the appropriate distinction for purposes of the law. That the work of Manet is art and Mapplethorpe is trash might be evident to a perceptive observer, but embodying that difference in a rule of law would pose problems most likely insuperable. So, he concludes, it is better to leave the arts alone. However, I doubt that Berns would, or could, carry that conclusion all the way to hardcore pornography. To do so would be to conspicuously contradict what he has affirmed about the law’s “duty” to assist the human form of sexuality. At any rate, if Berns may be considered a sometime supporter of censorship, his extensive knowledge of and regard for the arts renders him a most unusual censor.
First and foremost, Walter Berns was a civic educator. Hence, his reflections on constitutionalism are regularly informed by large questions about civic “culture,” fundamental rights, and religion. He was a persistent adversary of the doctrine currently designated as “multiculturalism,” which, to him, amounts to the notion that all cultures or ways of life are of equal worth. They are not. Some of them, including some religions, are intolerant or coercive, seeking to employ the apparatus of the state for imposition of beliefs on ultimate matters. Against such zealotry, Berns stands forcefully with the liberal culture separating religion and the state. The underlying liberal idea, formulated by John Locke and championed by Jefferson, is that the care “of each man’s soul belongs to himself” and not to anyone else.
This proposition about the essential privacy of “soul” and its concerns is cited repeatedly by Berns. The Lockean doctrine emphatically denies that civil society has anything, legitimately, to do with spiritual matters; it is about life, liberty, and the possession of material things “such as money, land, houses, furniture and the like.” Berns suggests that this Lockeanism is part of the official American philosophy, to be publicly affirmed and taught in the schools. Presumably, multiculturalism would have it presented simply as representative of one among diverse “cultures.” Berns wants it taught as the truth.
I can hardly disagree with Berns, or with Locke, that my soul belongs to me, and that we are not in civil society for spiritual purposes. But that doesn’t have to mean that my membership in the civic community is simply about my physical security and material possessions. As our tradition of reverential patriotism suggests, something significant is left out of the formulation; there is quite a bit more to it. How about ethical and social education—the cultivation of qualities such as self-mastery and mutual respect, and, generally, aspirations larger than self-interest as ordinarily conceived? These are the sort of qualities called virtues in Berns’s earlier writings.
The question, simply put, is about the status of moral character. Are we to believe that, because organized society has no responsibility for soul, it has none for character? Is personal morality only a private matter? Locke was not uninterested in this desideratum, but he relied for its cultivation on the private family. In so doing, he broke rather sharply with the Aristotelian tradition, according to which character development has to be an active concern of the community and its law. At the bottom of all this, of course, is the much-explored dispute between classical and modern conceptions of human nature and human development. Insofar as we are living in “Lockeland,” how much of the older orientation is preservable?
Walter Berns began his scholarly career as a sympathizer with the older orientation; subsequently, he moved (as he told me) some distance from that. How much distance I can’t be sure, but is doubtful that he went all the way to an exclusively Lockean-liberal version of the public good.
His continuing concern with issues of public morality is reflected in his treatment of legal decisions concerning the “establishment” of religion. In the 2004 case of Elk Grove Unified School District v. Newdow, the Supreme Court heard Michael Newdow’s argument that the language “under God” in the Pledge of Allegiance violates the First Amendment’s prohibition against the establishment of religion. The Court dismissed the case on the technical ground that Nedow lacked standing to bring suit, thus leaving the issue (temporarily) unresolved. Berns writes that the justices should have decided forthrightly for the school district.
He takes their Establishment Clause jurisprudence rather vigorously to task for failing to recognized the relevance of religion to civic interests, and for ignoring American history on the subject:
Not one of the Supreme Court Justices gave any thought, any thought whatsoever, to the connection, or even the possibility of a connection, between religious training and the sort of citizen required by a self-governing republic.
Berns doesn’t elaborate, but his apparent supposition is that religious training conduces to public spiritedness by enlarging one’s horizon beyond the self and by inculcating a sense of responsibility for the welfare of others. Our ancestors, he argues, understood well enough the contribution religion makes to republican government; that is why they regularly included it in the public school curricula. And now, he laments, we are dismantling and abandoning that system.
Regarding “under God” in the Pledge of Allegiance, Berns maintains that objection to it is little more than dogmatic libertarian zealotry. The children aren’t required to make the Pledge or to use the word “God.” And, after all, the name of God is invoked in many of our public ceremonies and no one is really injured. So why not in schools?
Counterargument: Children in school are a captive audience and a vulnerable one. While in the formal sense, participation is voluntary, it’s not really so voluntary. Then there is the problem of what religions and what beliefs are to qualify for recognition in public schools. Not all faiths are compatible with republican government (some are illiberal).
How would Berns reply? He might claim that adequate measures can be taken to insure against coercive pressures. And he might claim that the counterarguments are really reflections of an exaggerated secularism.
The most interesting question of course, is about the status of the Divinity in our American civil society and way of life. The Declaration of Independence invokes “the laws of nature and nature’s God,” and refers to the Creator as the source of our inalienable rights. And Tocqueville (frequently cited by Berns on this and other matters) saw in the Americans a religious people.
To what extent are we, as a community, still committed to that understanding of ourselves? Who could deny that our society has undergone a considerable secularization (which the Supreme Court has accommodated)? The secularizing process is associated with our commercialism. As Berns notes, “weakened belief—is one of the consequences of a life devoted to commerce.” Why? I won’t belabor the obvious, except to observe that preoccupation with worldly material success is hardly conducive to a preoccupation with the transcendental. But there is another, and perhaps equally profound, reason for weakened belief: the prominence among us of science, and a scientific outlook on reality. That outlook generates a matter-of-fact mentality, and, as Max Weber put it, “the disenchantment of the World.” No more mystery.
The decline of faith seems to have its upside as well as its downside. Berns suggests that religious toleration is dependent upon a way of life in which faith is less fervent. Is it sad news that tolerance depends upon weakened belief? Does that say something about human nature? Anyway, Berns—no wild optimist about human nature—was forthright in his acceptance of this reality.
It should go without saying that this essay falls rather short of doing full justice to Walter’s thought and mind. That would require a book—and more than a book. What I want to say here is that the ideas and commentaries of Walter Berns are of enduring importance; they should have an influence among future students, teachers, and devotees of American constitutional democracy.
 Walter Berns, Taking the Constitution Seriously (Simon and Schuster, 1987), p. 185.
 Plato addressed it in his Republic and his Laws.
 Walter Berns, Democracy and the Constitution: Landmarks of Contemporary Political Thought (AEI Press, 2006), p. 143.
 Democracy and the Constitution, p. 128.
 Ibid., p. 154.
 Walter Berns, The First Amendment and the Future of American Democracy (Basic Books, 1976), p. 213.
 Late in his life, Walter mentioned to me that he had modified somewhat the position taken in his writings. Very unfortunately, there was no opportunity for elaboration.
 Democracy and the Constitution, p. 84.
 Ibid., pp. 83-4.
 See Locke’s essay, Thoughts Concerning Education.
 Democracy and the Constitution, p. 156.
 Taking the Constitution Seriously, p. 180.